Judge hears Shelly’s appeal

Associated Press / Seth Wenig Former Assembly Speaker Sheldon Silver was sentenced to 12 years in prison for his 2015 conviction on seven counts of corruption, including extortion, honest-services fraud and money laundering. A judge heard his appeal on March 16.

BY DENNIS LYNCH

Disgraced former Assembly speaker Sheldon Silver was in court on Thursday to appeal his 2015 conviction on seven counts of corruption, and now the ultimate fate of a man who was once one of Albany’s most influential power brokers is in the hands of a federal judge.

The hearing on March 16 took only about an hour, but the appeals court “could take a day, or six months, or a year,” to decide on the appeal, according to Joel Cohen, one of Silver’s lawyers with MoloLamken. Silver, now 72, is seeking an outright dismissal or another trial.

Now-former U.S. Attorney Preet Bharara charged Silver for two schemes. Silver directed half a million dollars in state research funds to a mesothelioma doctor who was referring his patients to Silver’s law firm for potentially lucrative lawsuits. Silver also referred two major real estate firms to a law firm he did no lawyering for but from which he received large fees. Silver netted roughly $4 million in total through the two arrangements.

Silver’s lawyers argued on Thursday that Silver’s trial court judge wrongly told the jury that Silver’s actions constituted an “official act” and that the faulty instruction led to his conviction. They said he did not break the law because he never engaged in a quid pro quo action — a direct exchange of a political favor for money — in either situation.

They based their argument on the outcome of a 2016 Supreme Court appeal that overturned the similar conviction handed down against former Virginia Governor Robert McDonnell and his wife Maureen.

A jury had convicted McDonnell for accepting gifts and loans from the owner of a dietary supplement company in exchange for help getting the state’s public universities to study one of the company’s products.

McDonnell set up meetings, events, and contacted other public officials to do so, which federal prosecutors argued constituted an “official act” within the official capacity of McDonnell’s office. The Supreme Court said the judge in that case did give the jury what ended up being an “erroneous” definition of an official act, and the Supreme Court overturned the conviction by clarifying the term as not applying to McDonnell’s actions.

Now prosecutors have to prove that a public official pressured or advised on some payout or scheme in order to get a conviction. Silver’s lawyers argued that what he did also did not constitute an official act. Silver was not convicted on the same charges as McDonnell, however.

The septuagenarian former pol faces 12 years in prison if the appeals court upholds his conviction, which if served in full would likely mean Silver would spend the rest of his life behind bars.

Silver was Assembly Speaker from 1994 to his conviction in 2015, serving under five governors — including father and son Mario and Andrew Cuomo. He represented Lower Manhattan in the state body from 1977 until that same year.

He offered an emotional post-conviction apology in a letter a month before he was sentenced, saying that he had “failed the people of New York” and that “because of me, the government has been ridiculed.”

“I let my peers down, I let the people of the state down, and I let down my constituents — the people of Lower Manhattan that I live among and fought for. They deserve better,” the letter said, according to the New York Times.

The McDonnell ruling could have a wide-ranging impact on corruption cases around the country, as it raises the burden of proof that prosecutors must prove to secure a conviction, according to legal experts.

If you want this, here’s the def for official act. Bit in the weeds though:

An official act is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”